‘According to this video on Youtube:- https://youtu.be/odGiYJdFtE0 Ms Lauren Cherie Southern, a Canadian citizen, was stopped at Calais, France, on or about 12 March 2018 and prevented from entering the UK by British authorities. She has named Kent Police as the relevant police force.

(b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or

(c) any criminal proceedings which the authority has power to conduct.

(a) it was obtained or recorded by the authority for the purposes of its functions relating to—

(b) it relates to the obtaining of information from confidential sources.

Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—

(a) it constitutes personal data which do not fall within subsection (1), and

(b) either the first or the second condition below is satisfied.

(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of “data” in section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under this Act would contravene—

(a) does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1), and

(b) does not arise in relation to other information if or to the extent that either—

“the data protection principles” means the principles set out in Part I of Schedule 1 to the Data Protection Act 1998, as read subject to Part II of that Schedule and section 27(1) of that Act.

“data subject” has the same meaning as in section 1(1) of that Act.

“personal data” has the same meaning as in section 1(1) of that Act.

Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

Information which does not fall within section 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security.

The duty to confirm or deny does not arise if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of safeguarding national security.

For the purpose of the rehearing the Chief Constable filed a skeleton argument which explained why the exemptions listed above were relied upon. We refer to the Chief Constable’s arguments further below.

The Chief Constable also filed witness statements, with open and closed versions. There is a statement dated 22 November 2021 from Inspector Nicholas Thompson, whose role is Counter Terrorism Border Policing at the Channel Tunnel and Port of Dover where he manages border policing activities. In his open statement Insp Thompson explains: -

Insp Thomson explains in relation to s40 FOIA that: -

In relation to public interest factors which would be especially relevant to s24 FOIA, Insp Thomson says: -

There is also a witness statement from Detective Chief Superintendent Peter Holdcroft posted to Counter Terrorism Policing Headquarters (“CTPHQ”) and based at New Scotland Yard. He is the Head of CTPHQ Operations and one of his primary responsibilities is as the Head of the National CTP Borders Capability. His statement focuses on how information supplied by or relating to a body/bodies specified in Section 23 FOIA can help inform the decision to use Schedule 7 powers, and the impact a disclosure would have on the working relationship with such bodies. He says in his open statement: -

These witnesses were available for questions at the oral hearing of the appeal, but the Appellant did not wish to ask questions and the Tribunal did not have anything upon which it needed clarification.

Neither the Commissioner nor the Appellant made any further written submissions to the Tribunal re-hearing the appeal.

The Appellant provided the Tribunal with a partial transcript of a media interview with Ms Southern following her release, in which she states that during questioning under Schedule 7, she was asked about her religious beliefs and ideology, and that her ‘cell phone code’ was asked for. The Chief Constable accepts this is what Ms Southern said in the media interview, but does not admit this is what happened when Ms Southern was examined under Schedule 7.

The Appellant’s points raised in the hearing about the importance of disclosure of the information were twofold. First of all, he argued that it was not legitimate for the police to ask questions under Schedule 7 about a person’s religious beliefs or ideology. Secondly, he argued that disclosure was important so that the public could see whether Ms Southern had been truthful about what she had said in the media interview.

The Appellant did not dispute that the information he has requested in parts 1 and 2 of the request would be personal data and that Ms Southern has not consented to its disclosure.

In relation to the Chief Constable’s arguments in relation to s40 FOIA these are conveniently set out in the UT decision as follows: -

In relation to s23 FOIA and s24 FOIA, again, the UT conveniently set out the arguments which have now been relied upon before us, orally and in the skeleton argument, and supported by witness statements: -

The Chief Constable’s case is that the information sought in parts 1 and 2 of the request amounts to personal information as defined in the DPA 1998 and the Appellant does not dispute that this is the case. It seems sensible to the Tribunal, therefore, to begin the discussion by asking whether this is personal information that can be disclosed.

Section 40(4) FOIA as it was at the time of the request has the effect that personal information is exempt from disclosure if any provisions in Part IV of the DPA 1998 would prevent a ‘data subject’ from having access to the personal data.

Sections 28 and 29 DPA 1998 were in Part IV of that Act and state that: -

We accept the evidence of the Chief Constable’s officers set out above, in relation to national security and prevention/detection of crime matters. In particular we note that Insp Thompson states that: -

It seems to us that the evidence of the officers provides sufficient reasons why the application of ss28 and 29 of DPA 1998 would mean that Ms Southern would not be given access to her own personal information (as contained in the information requested), and therefore the Appellant is also not entitled to disclosure. There are no public interest factors to be taken into account when considering s40(4) FOIA.

Even if that conclusion is wrong then in our view the personal data of Ms Southern is not disclosable in any event, pursuant to s40(3) FOIA. She has not consented to the disclosure. Materially, for the purposes of s40(3)(a)(i), the first data protection principle requires that personal data is processed (which includes disclosure) fairly. Section 10 of the DPA 1998 (as referred to in s40(3)(a)(ii)) refers to damage or distress caused by disclosure.

In relation to interpreting the first principle, set out in Sch 1 to the DPA 1998, the disclosure must also satisfy at least one of the conditions set out in Sch 2 to the DPA 1998 ‘relevant for purposes of the first principle’. Processing would be permitted if the data subject had consented to it (Sch 2, first condition). The other relevant condition that might apply for these purposes is that set out as the sixth condition in Sch 2, which would apply if it were to be established that the disclosure is necessary in order to meet the legitimate interests of the appellant.

For the purposes of the sixth condition, there is an additional consideration to be made before the gateway to provision of the information is open. Where a need for disclosure has been established as for the purposes of the appellant’s legitimate interests, a further consideration must be made in respect of whether those legitimate interests in disclosure are outweighed by reason of prejudice to the rights and freedoms or legitimate interests of the data subject if it were to happen. The disclosure can only be made if the appellant’s legitimate interests in it are not outweighed by Ms Southern’s fundamental rights and freedoms.

In our view, the Appellant does not have a legitimate interest in the disclosure of Ms Southern’s personal data. As set out above, the reasons he has given for wanting disclosure is establishing whether Ms Southern is correct in stating that she was asked about her ideological or religious motivations, and in establishing whether Ms Southern was telling the truth about what happened when she was examined under Schedule 7. Both of these reasons supporting the importance of disclosure seem very weak to the Tribunal.

In relation to the first point, we note that Schedule 7 TACT entitles a police constable, immigration or customs officers (examining officers) to stop, question and detain a person at a port or border area in order to determine whether the person appears to be a person falling within s.40(1)(b) TACT – in other words, whether they appear to be or have been concerned in the commission, preparation or instigation (CPI) of acts of terrorism. It must be common knowledge that at least some CPI of acts of terrorism may be motivated by a person’s beliefs (religious or otherwise) or ideology. It would be an odd state of affairs if an examining officer was unable to ask questions about these issues during an examination. There is no law that we know of which prevents the police from asking such questions. Discovering whether such questions were, in fact, asked cannot amount to legitimate interests in our view.

In relation to the second point, we are of the view that establishing whether Ms Southern was telling the truth in interview, is not a legitimate interest which could justify disclosure of her personal information, to the general public. Whether Ms Southern has been truthful or not really is a matter for her, and the Appellant (and others) can choose whether to believe her or not.

If, as we have found, there is no legitimate interest in disclosure of someone else’s personal data, then there is no need to go on to consider whether disclosure is ‘necessary’ to achieve that legitimate interest, or to consider whether the legitimate interest outweighs the fundamental rights and freedoms of the subject of the personal data. However, we would just comment that it seems to us that the ‘interests’ would need to be of overwhelming importance before they could countervail the rights of a person not to have disclosed personal information in the form of answers provided to the police in a formal examination process. Any interests that the Appellant has in disclosure in this case are not, in our view, of overwhelming importance for the reasons set out above.

In relation to s23 FOIA, in the recent case of Commissioner of the Police of the Metropolis v The Information Commissioner and Rosenbaum [2021] UKUT 5 (AAC) it was held that section 23 FOIA provides the ‘widest protection’ of any of the exemptions under FOIA as it is designed to preserve the operational secrecy necessary for security bodies to function, and effectively FOIA cannot be used to obtain information about the activities of these bodies. The purpose of section 23(5) FOIA is to prevent inferences being drawn on the existence of types of information held, through the use of the neither confirm nor deny (NCND) approach.

We accept the evidence of DCS Holdcroft (which has not been disputed) that ‘the requested information relates to s.23 bodies because the operational guidance and paperwork is drafted having regard to the close working relationship with the security bodies via the Joint Border Team and so its dissemination would betray areas in which our s.23 body partners have an interest, or by its absence, do not have an interest’.

Even if s23 FOIA does not apply, for the unchallenged reasons set out by the Chief Constable’s witnesses as set out above (see paragraphs 27 and 28), it is our view that s24 FOIA is engaged and exemption from disclosure is required for the purpose of safeguarding national security.

In relation to the application of s24 FOIA, the Appellant argues that disclosure is in the public interest. While we can accept that there are public interest reasons for disclosing whether the information is held, given the subject area covered by the request, our role is to consider whether the public interest balance favours disclosing the information. In our view, the public interest in not prejudicing national security, as explained by Insp Thomson (see paragraph 27 above), far outweighs any public interest there might be in disclosing the contents of an individual’s interaction with the police through the Schedule 7 process, and therefore the balance falls on the side of non-disclosure.

Having reached those conclusions, it is not necessary for the Tribunal to go and consider additional exemptions relied upon by the Chief Constable in s30 and 31 FOIA. The Tribunal has considered the CLOSED material available to it. It supports the conclusions reached above on the OPEN material and it is not necessary to refer to it further

For these reasons, this appeal is dismissed.